Wednesday 7 December 2016

Hospital appeals decision over housing costs who suffered catastrophic injuries due to negligence at her birth

Tim Healy

Published 25/01/2016 | 18:11

The National Maternity Hospital on Holles Street
The National Maternity Hospital on Holles Street

THE Supreme Court has been asked to decide how much the National Maternity Hospital (NMH) must pay towards the €1.16m cost of a specially adapted new home for a girl who suffered catastrophic injuries due to admitted negligence at her birth.

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The NMH has asked the five judge court to devise a formula to assist the courts in calculating how much a defendant should contribute towards accommodation costs of such cases over a person's lifetime.

A number of the judges noted it would be very difficult to devise a formula to meet the particular circumstances of each catastrophically injured plaintiff.

The issue was raised in an appeal by the NMH against a High Court finding it should pay €735,000 towards the €1.16m cost of a new adapted house in Sandymount, Dublin, for 11-year-old Charlotte Barry, who is severely disabled with cerebral palsy requiring lifelong care.

The NMH previously agreed to make interim payments of more than €2.7m towards her care pending enactment of legislation allowing for phased payments in catastrophic injury cases.

The hospital argues its liability for the child’s accommodation needs does not exceed €692,446 of which €117,000 should come from some €350,000 damages awarded for loss of earnings into the future.

It also argues her parents could contribute some of the €217,000 equity expected from sale of their previous home in Sandymount, valued at €550,000, as they will also move into the new home with Charlotte and their other children. The hospital had funded adaptations to that property, it says.

There is no general entitlement to the cost of a property in Sandymount when average house prices in Dublin are some €275,000, it was argued.

Emily Egan SC, for the NMH, said there is no entitlement to “over compensation” or to a “windfall” for a catastrophically injured plaintiff’s family or estate.

The hospital was obliged to compensate an injured person by paying 100 per cent of costs incurred as a result of their injuries and not more than that, she said.

Denis McCullough SC, for Charlotte, argued parents are not obliged to contribute equity from their own home towards costs of a new home required for their child due to her injuries even if they will also move into that home.

Counsel said the deduction of a sum from the loss of earnings awards, on grounds that was the likely lifetime accommodation costs of an injured person, was acceptable.

His side's concern was that this child should get accommodation appropriate for her needs and the hospital should be liable for that cost.

Any financial benefit that might ultimately accrue to the child’s parents or estate from purchase of a new home necessitated by her injuries was entirely incidental, he said.

Had she not suffered injuries due to negligence, there was no reason to suppose she would not have left a property in her estate and no reason for a family’s assets to be taken into account in ease of the hospital, he argued.

Having heard from both sides, the court reserved judgment on the appeal.

Charlotte, with an address at O'Connell Gardens, Bath Avenue, Sandymount, was born severely disabled at the Holles Street hospital on September 9, 2005. She can only communicate through facial and eye movements.

She sued the hospital through her mother, Aisling Campbell, alleging failure to properly manage labour, delivery and birth. The hospital accepted liability at the High Court in 2010 and has made interim payments since towards her care.

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